Five key employment cases of 2018

As we enter the festive period and the start of a new year, we take a look back on some of the most notable cases of 2018.

Employer’s liability

• A managing director’s assault on an employee was held to be “in the course of employment” by the Court of Appeal, and therefore rendered the company vicariously liable in Bellman v Northampton Recruitment Limited. Although the assault occurred at an unscheduled drinking session following the company Christmas party - which was not an authorised work event- the managing director asserted his authority during the drinking session, in the presence of around 50% of the company's staff, by leading a discussion focused on business matters. The discussion lasted for about an hour before his managerial decision-making was challenged by a member of staff which prompted the assault. Ultimately, the participants in the drinking session attended the Christmas party in their roles as staff members and managing director, and the managing director’s actions made the drinking session a continuation of that event. The court held there was sufficient connection between the managing director’s job and the assault to render the company vicariously liable.

Termination

• In a case that did reach the Supreme Court, Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood, the matter at issue was when a written notice of dismissal delivered by post took effect. Ms Haywood’s position became redundant in the months approaching her 50th birthday, which is significant as if this had happened on or after her 50th birthday, she would be entitled to an enhanced pension. On 20 April 2011, the trust sent Ms Haywood a letter by recorded delivery terminating her employment with 12 weeks’ notice, to end on 15 July 2011. A few important events occurred around this time; Ms Haywood was on holiday, as a result the postal service could not deliver the letter and so returned it to the sorting office, and Ms Haywood’s father-in-law collected it and took it to her house on 26 April. Ms Haywood read the letter on 27 April on returning from her holiday. The Supreme Court held that, in the absence of an express contractual term specifying when a notice of termination is effective, the notice starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so. In this case, that meant on 27 April which, in turn, meant that the termination date fell after Ms Haywood’s 50th birthday.

Discrimination

• In a case concerning unfair dismissal by reason of pregnancy and pregnancy discrimination, the Employment Appeal Tribunal in Really Easy Car Credit Ltd v Thompsonconfirmed the fact that in order for an employer to be liable, the employer must have known, or believed, that the employee was pregnant when it took the decision to dismiss. In this case, the employer’s lack of knowledge meant they were not liable. There was also no positive obligation on the employer to revisit their decision to dismiss once it had learnt of the individual’s pregnancy.
• In a highly publicised case, Lee v Ashers Baking Company Limited and others, the Supreme Court held that a bakery and its Christian owners had not directly discriminated against a gay customer on the ground of sexual orientation, religious belief or political opinion when they refused to provide a cake bearing the words "Support Gay Marriage". Lady Hale said that the reason for the treatment was the message on the cake, not the personal characteristics of the customer or anyone associated with him, and that just because the reason for less favourable treatment “has something to do with the sexual orientation of some people” does not mean that the less favourable treatment is “on grounds of” sexual orientation.

Gig economy

• In the long awaited judgment forPimlico Plumbers Ltd and Mullins v Smith,the Supreme Court agreed that a plumber was a worker, with the personal service element being the dominant feature of the contract, notwithstanding a limited right of substitution, together with a high degree of control exerted by Pimlico Plumbers. In particular, Mr Smith was required to be available to work up to 40 hours on five days each week, and Pimlico Plumbers also exercised tight control over Mr Smith, for example, with a uniform, ID card, branded van and “severe” terms about when and how much would be paid to Mr Smith.